2011 Legislation

The 82nd Texas Legislature ended its regular session May 30, 2011. All probate, guardianship and trust bills passed during the session have been signed by the Governor, and most become effective September 1, 2011. One bill in the first called session (SB 1) contains guardianship changes and, as of July 8, 2011, was awaiting the Governor's signature. Each bill affecting probate, guardianship and trust law is listed below. Click here to search for a particular bill, or use the list of topics and key words to the right to find legislation.

Top Ten Things to Do Now -- Glenn Karisch's list of ten things estate planning and probate attorneys should do to address the legislative changes taking effect September 1, 2011. Here are the pdf and blog versions.

All bills are labeled "Awaiting Governor's Signature," "Enacted," or "Did Not Pass."____________________________________________________________________

Entries in HB 1858
(1)

Caption: Relating to the creation, administration, and interpretation of powers of attorney, including statutory powers of attorney.Author: HartnettBill HistoryBill Text

Relevance: This bill is supported by the Real Estate, Probate and Trust Law Section of the State Bar of Texas. It is the "Durable Power of Attorney Act," which rewrites Texas law regarding durable powers of attorney. Most of these changes are based on the new Uniform Power of Attorney Act, which was adopted by the National Conference of Commissioners on Uniform State Laws in 2006. It changes the statutory durable power of attorney form significantly. The changes are too numerous to mention here, but here are a few highlights:

Powers of attorney are presumed to be durable unless they expressly terminate on disability.

The act lists the persons who have standing to bring an action to construe a power of attorney, review an agent's conduct or grant appropriate relief.

The point at which an agent accepts appointment is defined.

The act provides protections for persons accepting powers of attorney and consequences for persons who don't accept a power of attorney.

Agents are permitted to do the following only if the principal specifically authorizes these actions:

Create, amend, revoke, or terminate an inter vivos trust.

Make a gift.

Create or change rights of survivorship.

Create or change a beneficiary designation.

Waive the principal's right to be a beneficiary of a joint and survivor annuity.

There's a totally new statutory durable power of attorney form, which includes a disclosure statement and a statement of the agent's duties.

There's a new form for an agent's certification as to the validity of a power of attorney and the agent's authority.

This is a significant piece of legislation that will change power of attorney practice if it is enacted.

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